Exhibit 9-1(d)
CONFIDENTIALITY AGREEMENT
AGREEMENT entered into as of November 5, 1996 by and between Xxxxxxxx X.
Xxxxxxxxx ("Xxxxxxxxx"), residing at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and Advanced Radio Telecom Corp. (the "Company"), located at 000 000xx
Xxx., X.X., Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx 00000.
WHEREAS, the Company by action of a majority of its directors in their sole
discretion may from time to time invite Xxxxxxxxx as an observer to meetings of
its Board of Directors and provide to him information concerning the Company;
and
WHEREAS, in connection therewith, the Company may, in its sole discretion,
disclose to Xxxxxxxxx and his affiliates, consultants, attorneys and advisors
(collectively, "Representatives") certain material confidential information
relating to the Company's business, performance and prospects, which may
include, without limitation, the Company's books and records, the Company's
trade secrets, the Company's operational practices, the identity of the
Company's customers, the Company's plans and information concerning potential
and actual acquisitions, dispositions and business combinations, the identity of
the Company's affiliates, any of the Company's customers confidential
information, the identity of the Company's suppliers and prospective suppliers,
the identity of the Company's creditors and financial backers, the Company's
know how, the Company's designs, the Company's inventions, the Company's
methods, the Company's processes, the Company's techniques and skills (whether
devised, developed or used by or for the Company), the Company's estimating and
costing procedures and the cost and gross prices charged by the Company for its
products and services, the prices or other consideration charged to or required
of the Company by any of its suppliers or potential suppliers and the Company's
sales and promotional policies (such information, including analyses,
compilations, studies and other material prepared by Xxxxxxxxx or his
Representatives based in whole or in part on such information, being hereinafter
referred to collectively as "Confidential Information"); and
WHEREAS, the Company has adopted a policy concerning xxxxxxx xxxxxxx in the
form attached hereto as Appendix 1 (as amended by the Company in its discretion
from time to time and provided promptly in writing to Xxxxxxxxx, the "Xxxxxxx
Xxxxxxx Policy");
NOW, THEREFORE, the parties hereto agree as follows:
1. Xxxxxxxxx (i) shall not disclose Confidential Information (ii) shall
keep such information confidential and (iii) shall not use Confidential
Information in any manner or for any purpose that reduces the benefits the
Company may derive from
that information; provided, however, that Xxxxxxxxx may disclose Confidential
Information to Representatives; provided further that such Representatives will
be informed by Xxxxxxxxx of this Agreement and any such Representative (other
than counsel) will agree in writing to treat any such Confidential Information
in accordance with the terms and conditions of this Agreement applicable to
Xxxxxxxxx, including without limitation complying with the Xxxxxxx Xxxxxxx
Policy. Nothing in this Agreement shall impinge on or restrict Xxxxxxxxx'x
ability to consult with counsel. Notwithstanding any other provisions of this
Agreement, this Agreement shall not operate to preclude Xxxxxxxxx or his
Representatives from disclosing any of the Confidential Information or any
information relating to their opinion, judgment or recommendations concerning
the Company developed after receipt of the Confidential Information, if
Xxxxxxxxx or his Representatives are compelled (by deposition, interrogatory,
request for documents, subpoena, civil investigatory demand or similar process)
to do so. Xxxxxxxxx hereby agrees to notify the Company promptly if he or his
Representatives are compelled to disclose information in such circumstances, so
that the Company may seek a protective order or other appropriate remedy. The
Company hereby agrees to pay in full, and to advance payment for, any expenses,
including legal fees, relating to steps taken by the Company or taken by
Xxxxxxxxx or his Representatives at the request of the Company to seek a
protective order or other remedy.
2. If at any time the Company shall so request, Xxxxxxxxx will promptly
deliver to the Company all written Confidential Information and will cause all
copies thereof to be returned or destroyed. Xxxxxxxxx will confirm such return
or destruction in writing to the Company.
3. The term "Confidential Information" does not include information
which:
(i) is in or subsequently comes into the public domain other
than as a result of a disclosure by Xxxxxxxxx or the Representatives
in breach of this Agreement; or
(ii) is otherwise legally acquired by Xxxxxxxxx from a third
party not in breach of any confidentiality obligation to the Company;
or
(iii) is disclosed by the Company to Xxxxxxxxx, his
Representatives or to any third party on a non-confidential basis; or
(iv) is brought to the Company by Xxxxxxxxx or his
Representatives; or
(v) is not information which would generally be expected to be
Confidential Information and has not been expressly identified to
Xxxxxxxxx or his Representatives by one of the
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Company's directors, or officers, representatives or agents as
"Confidential Information".
For purposes of clause (v) above, the following are among the information
generally expected to be Confidential Information: financial reports,
projections, business plans or acquisition plans.
4. Xxxxxxxxx agrees that, during times when he is in possession of
Confidential Information, he is subject to and will comply with all the terms of
the Xxxxxxx Xxxxxxx Policy. The Company agrees to give Xxxxxxxxx notice of all
actions and determinations by the Company pursuant to the Xxxxxxx Xxxxxxx
Policy.
5. Xxxxxxxxx shall indemnify and hold the Company harmless from and
against any and all losses, liabilities, damages, deficiencies, costs or
expenses resulting from (a) the breach by Xxxxxxxxx of this Agreement, (b) the
disclosure by any Representative (whether or not intentional, negligent or
otherwise) of any Confidential Information disclosed to the Representative
directly or indirectly by Xxxxxxxxx, (c) the use by Xxxxxxxxx or his
Representatives of the Confidential Information in any manner or for any purpose
that reduces the benefits the Company may derive from that information and (d)
any and all actions, suits, proceedings, claims, remands, assessments,
judgments, costs and expenses (including attorneys' fees) incident to any of the
matters set forth in this Section 5, including those incurred in connection with
actions brought to recover from Xxxxxxxxx pursuant to this Section 5. However,
Xxxxxxxxx shall not be required to indemnify or hold harmless the Company
against any or all losses, liabilities, damages, deficiencies, costs or expenses
resulting from the gross negligence or willful misconduct of the Company or any
of its directors, officers or employees.
6. Except for the obligations set forth in Section 7 below, all
obligations hereunder shall expire on the second anniversary of the last date on
which Xxxxxxxxx attends a Board meeting of the Company or receives Confidential
Information from the Company.
7. Xxxxxxxxx agrees that he will not, and will use his best efforts to
ensure that persons retained as consultants (and generally operating at his
direction) or employed directly or indirectly by him, during the period of such
employment or retention, or members of his immediate family will not, serve as
directors, officers, employees or consultants of the Company during the term of
the Cooperation Agreement, dated the date hereof, between the Company, Xxxxxxxxx
and Landover Holdings Corporation. The Company's stockholders are hereby
expressly made third party beneficiaries of Section 7 of this Agreement, and
accordingly, to the fullest extent permitted by law this Section 7 may not be
amended without the prior written consent of the Company, acting by unanimous
vote of its Board of Directors, and approval of the Company's stockholders
acting by the
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affirmative vote of two-thirds of the total voting power of the capital stock of
the Company generally entitled to vote on matters submitted to a stockholder
vote. However, notwithstanding any of the foregoing, this Section 7 shall not
be amended to terminate or modify any provision hereof if the continued
existence of such provision without such modification or termination is required
by a third party regulatory agency, for example, as a condition to continued
listing of the Company's (or any acquiring company's) equity securities on the
Nasdaq National Market System or other principal trading market for such equity
securities.
8. Nothing in this Agreement shall operate to preclude or restrict
Xxxxxxxxx or his Representatives from providing to third parties information
(other than Confidential Information), including but not limited to investment,
acquisition or merger opportunities, that Xxxxxxxxx or his Representatives also
have provided to the Company.
9. This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and supersedes and replaces all prior
discussions, writings or understandings between the parties on such matter.
10. Xxxxxxxxx recognizes that a breach of this Agreement may cause
irreparable harm to the Company and accordingly, without limiting any other
remedies available in equity or at law, agrees to the granting of injunctive
relief to prevent a breach or the continuing breach of this Agreement.
11. (a) All of the covenants and agreements contained in this Agreement
shall be binding upon, and inure to the benefit of, the respective parties and
their successors, assigns, heirs, executors, administrators and other legal
representatives, as the case may be.
(b) This Agreement, and the rights of the parties hereto, shall be
governed by and construed in accordance with the laws of the State of Delaware.
(c) This Agreement may be executed in one or more counterparts, each
of which will be deemed an original but all of which together shall constitute
one and the same instrument.
(d) If any provision of this Agreement shall be declared void or
unenforceable by any court or administrative board of competent jurisdiction,
such provision shall be deemed to have been severed from the remainder of the
Agreement and this Agreement shall continue in all respects to be valid and
enforceable.
(e) Whenever the context of this Agreement shall so require, the use
of the singular number shall include the plural and the use of the gender shall
include all genders.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ADVANCED RADIO TELECOM CORP.
By:___________________________
Name:
Title:
ADVANCED RADIO TECHNOLOGIES
CORPORATION
By:___________________________
Name:
Title:
______________________________
Xxxxxxxx X. Xxxxxxxxx
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